FRANCE Law and Practice Contributed by: Fernand Arsanios, Delphine Guillotte, Guillaume Chaboureau, Houda Idaroussi and El Sayegh, King & Spalding
Waiver of Immunity A waiver of immunity may concern immunity from jurisdiction or immunity from enforcement. • Immunity from jurisdiction prevents a court from considering claims against a particular state. A state may waive its immunity from jurisdiction in a dispute, provided that the waiver is certain, express and unequivocal. • Immunity from enforcement prevents a state’s assets located in another jurisdiction from being seized without its consent by a party seeking to execute a judgment or an arbitral award rendered against that state. Since the Sapin II law was passed in 2016, a claimant seeking to seize a foreign state’s assets located in France must obtain the prior authorisation of a judge and, at the same time, justify that one of the following conditions is met: • the foreign state has expressly (ie, written and devoid of ambiguity) agreed to the application of such a measure; • the foreign state has reserved or allocated the asset for the satisfaction of the claim which is sub- ject to the proceedings; or • the asset likely to be seized is specifically used or intended to be used by the foreign state for com- mercial purposes, and is connected to the entity against which the proceedings have been brought. 6.3 Foreign Court Judgments A foreign judgment or an arbitral award against a com- pany may be enforceable in France without a retrial of the merits subject to certain conditions. Foreign Judgment Inside the EU The fundamental principle within the EU is that of mutual recognition, which facilitates the circulation of judicial decisions between member states. Conse- quently, in civil and commercial matters, the decisions issued in the court of one member state of the EU are automatically recognised and enforceable in another member state without the need for an “exequatur” procedure (Brussels I bis Regulation). However, recog- nition may be refused in certain cases – for instance,
in the event of a violation of the public policy of the requested state. Outside the EU To enforce a foreign judgment rendered outside the EU, an exequatur order is required, and will be granted if the following conditions are met: • the foreign judgment must be definitive and enforceable in its country of origin; • the foreign court must have had proper jurisdiction; • the judgment must not be contrary to the interna- tional public policy; and • the judgment must not have been obtained through fraud. The process can take months or years, and success depends on fulfilling the four conditions. If the exequatur is denied, the foreign judgment can- not be enforced in France, and the creditor may face penalties for abusive litigation, although this is rare. Conversely, once the exequatur is granted, the foreign judgment can be enforced for a period of ten years from the date of the definitive exequatur judgment. However, provisional measures against a debtor’s assets may still be taken by request before obtaining an exequatur order, provided the creditor justifies a debt established in principle and a risk of non-recov- ery of the amounts concerned. Arbitral Awards The enforcement of an arbitral award is also subject to an exequatur order and is recognised or enforced in France subject to satisfactory evidence provided by the invoking party, and provided that such recogni- tion or enforcement does not go against international public policy. 6.4 A Foreign Lender’s Ability to Enforce Its Rights If a security interest encumbers the shares of a French company and the enforcement of the security is to be considered a foreign investment falling within the scope of the special regime governed by Articles L.151-1 et seq and R.151-1 et seq of the French
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